448 F.3d 547 (2nd Cir. 2006), 04-0926, Betancourt v. Bloomberg

Docket Nº:04-0926-CV.
Citation:448 F.3d 547
Party Name:Augustine BETANCOURT, individually and on behalf of all persons similarly situated, Plaintiff-Appellant, Lambert Watson, Plaintiff, v. Michael R. BLOOMBERG, in his official capacity as Mayor of the City of New York, Raymond W. Kelly, in his official capacity as Police Commissioner of the City of New York [*] , and the City of New York, Defendants-A
Case Date:May 18, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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448 F.3d 547 (2nd Cir. 2006)

Augustine BETANCOURT, individually and on behalf of all persons similarly situated, Plaintiff-Appellant,

Lambert Watson, Plaintiff,


Michael R. BLOOMBERG, in his official capacity as Mayor of the City of New York, Raymond W. Kelly, in his official capacity as Police Commissioner of the City of New York [*] , and the City of New York, Defendants-Appellees.

No. 04-0926-CV.

United States Court of Appeals, Second Circuit.

May 18, 2006

Argued: April 21, 2005.

Appeal from so much of a judgment of the United States District Court for the Southern District of New York as dismissed appellant's claims under 42 U.S.C. § 1983 principally challenging § 16-122(b) of the New York City Administrative Code, which prohibits leaving boxes and erecting obstructions in public spaces, as unconstitutionally vague.

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Eric Twiste, New York, New York (Daniel J. Leffell, Paul, Weiss, Rifkind, Wharton & Garrison, New York, New York, Douglas H. Lasdon, The Urban Justice Center, New York, New York, on the brief), for Plaintiff-Appellant.

Alan Beckoff, Assistant Corporation Counsel, New York, New York (Michael A. Cardozo, Corporation Counsel of the City

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of New York, Stephen J. McGrath, of counsel, New York, New York, on the brief), for Defendants-Appellees.

Before: KEARSE, WINTER, and CALABRESI, Circuit Judges.

KEARSE, Circuit Judge.

Plaintiff Augustine Betancourt appeals from so much of a judgment of the United States District Court for the Southern District of New York as dismissed his claims against defendants City of New York ("City"), its mayor, and its police commissioner, brought under 42 U.S.C. § 1983, challenging Betancourt's arrest on a charge of violating City Administrative Code § 16-122. Betancourt alleged that subsection (b) of that section, which, inter alia, prohibits leaving boxes and erecting obstructions in public spaces, is unconstitutionally overbroad and, as applied to him, unconstitutionally vague; he also alleged that his arrest was without probable cause and violated his right to travel. The district court, John S. Martin, Jr., then- Judge, granted defendants' motion for partial summary judgment dismissing those claims on the grounds that § 16-122(b) was sufficiently clear to give notice both to Betancourt and to law enforcement officials as to what conduct was prohibited; that the section plainly applied to Betancourt's observed conduct; and that the section did not implicate Betancourt's right to travel. On appeal, Betancourt principally pursues his contentions that § 16-122(b) is unconstitutionally vague and overbroad and that he was arrested without probable cause. For the reasons that follow, we affirm.


This case arises out of the 1997 arrest of Betancourt and other homeless persons pursuant to a City program designed to improve the quality of life in the City's public spaces. Viewed in the light most favorable to Betancourt, as the party against whom summary judgment was granted on the claims at issue on this appeal, the following facts are not in dispute except as indicated.

A. The Events

In 1994, the City undertook a "Quality of Life" initiative designed to reduce a wide range of street crimes including prostitution, panhandling, and drug sales. Betancourt asserted that the initiative was thereafter expanded to, inter alia, reduce the number of homeless persons residing in public spaces. The City's Police Department issued a guide for law enforcement officers, listing laws that prohibited conduct targeted by the initiative. Those laws included City Administrative Code § 16-122, subsection (b) of which states that

[i]t shall be unlawful for any person, such person's agent or employee to leave, or to suffer or permit to be left, any box, barrel, bale of merchandise or other movable property whether or not owned by such person, upon any marginal or public street or any public place, or to erect or cause to be erected thereon any shed, building or other obstruction.

N.Y., N.Y., Admin. Code ("NYC Admin. Code") § 16-122(b).

In the early morning hours of February 28, 1997, in or around certain parks in lower Manhattan, police officers arrested 25 individuals, including Betancourt. Betancourt had come to the park at approximately 10:30 p.m. on February 27 with some personal possessions, three folded cardboard boxes, and a loose piece of cardboard. He used the three boxes to construct

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a "tube" large enough to accommodate most of his body; he placed the tube on a park bench, climbed into the tube, covered the exposed part of his body with the loose piece of cardboard, and went to sleep. At approximately 1:00 a.m. on February 28, the police roused Betancourt from his sleep and arrested him. At approximately 5:00 a.m. on March 1, 1997, Betancourt was given a Desk Appearance Ticket, noting that he was charged with violating § 16-122, and was released. By that time, the District Attorney's Office had signed a " DECLINATION OF PROSECUTION, " stating that " PROSECUTION OF TH[E] CASE [against Betancourt] WAS DECLINED [because the case] Lack[ed] Prosecutorial Merit." (Declination of Prosecution dated February 28, 1997.)

B. The Present Action

The present action was commenced in September 1997 under 42 U.S.C. § 1983 by Betancourt and by another plaintiff who has not pursued his claims. Betancourt alleged principally (a) that § 16-122(b) is unconstitutionally overbroad and unconstitutionally vague as applied to him, (b) that he had been arrested without probable cause and in violation of his right to travel, and (c) that he had been subjected to an unreasonable strip search. Following a period of discovery, both sides moved for summary judgment.

As to the vagueness challenge, defendants contended that § 16-122(b) was clear on its face. Betancourt disputed that contention, pointing out that subsection (a) of § 16-122 states that "[t]he purpose of this section is to punish those persons who abandon and/or remove component parts of motor vehicles in public streets," NYC Admin. Code § 16-122(a). He argued that § 16-122 as a whole did not provide him with reasonable notice that his conduct, which was unrelated to motor vehicles, would be unlawful.

In a Memorandum Opinion and Order dated December 26, 2000, the district court granted Betancourt's motion for summary judgment as to liability on his strip-search claim--a claim that was eventually settled and is not at issue on this appeal. As to Betancourt's remaining claims, the district court granted summary judgment in favor of defendants. See Betancourt v. Giuliani, No. 97 Civ. 6748, 2000 WL 1877071, at *7 (S.D.N.Y. Dec.26, 2000) ("Betancourt I").

In addressing Betancourt's vagueness challenge, the district court stated that a statute is not unconstitutionally vague if it (1) "give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited," and (2) "provide[s] explicit standards for those who apply [it]." Id. at *3 (internal quotation marks omitted). The court also noted that " '[b]ecause the statute is judged on an as applied basis, one whose conduct is clearly proscribed by the statute cannot successfully challenge it for vagueness.' " Id. (quoting United States v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993)).

The district court found the plain language of § 16-122(b) sufficiently clear to alert Betancourt that his conduct was prohibited. The court stated that the language that "makes it unlawful to erect or cause to be erected . . . any shed, building or other obstruction," Betancourt I, 2000 WL 1877071, at *3 (internal quotation marks omitted), was reasonably understood to apply to Betancourt's conduct because he

had erected a human-sized cardboard structure, housing a human inside, in a public space. He was not simply occupying a park bench with a few personal items. Rather, he had erected an obstruction in a public space.

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.... Because Plaintiff had sufficient notice that his conduct was prohibited by Section 16-122(b), the statute passes the first prong of the vague as applied test,

id. at *4.

The district court rejected Betancourt's argument that subsection (b) implicitly included subsection (a)'s reference to motor vehicles. The court noted that the predecessor to § 16-122(b) had referred to, inter alia, erecting obstructions and leaving boxes and "vehicle[s]" on "public street[s]," NYC Admin. Code § 755(4)-2.0 (1964). Section § 755(4)-2.0 was substantially revised in 1969 and was eventually codified as § 16-122. Subsections (a), (c), (e), and (f) of § 16-122 were drafted to deal explicitly with motor vehicles; the language of § 755(4)-2.0 became subsection (b) of § 16-122 but was amended to remove any reference to vehicles. However, the court noted,

the prohibition against leaving boxes, barrels, bales of merchandise, and erecting sheds or obstructions in public spaces remained in subsection (b). While subsection (a) explained the purpose of the new subsections regarding motor vehicles, no such explanation was needed to explain the purpose of the prohibition against leaving other things in public spaces. Moreover, the plain meaning of subsection (b), which unlike the other subsections contains no reference to vehicles, requires that it be read as prohibiting leaving boxes and erecting obstructions in public spaces.

Betancourt I, 2000 WL 1877071, at *3 (emphases added).

The district court also found that § 16-122(b) did not give law enforcement agents unfettered discretion to make arrests, but instead provided adequate guidelines to permit them to determine whether a person was engaging in conduct that violated that subsection. Distinguishing City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67...

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